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Sanitizing the Death Penalty

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Several American states are now considering a return to the electric chair or firing squad as methods of execution. These news, along with Clayton Lockett's botched lethal injection in Oklahoma last month, have revived a longstanding debate about how to "humanely" execute prisoners.

The methods of execution in America have historically evolved from the gallows, firing squad, gas chamber, and electric chair to lethal injection. Many people believe that the recurrent search for "painless" methods of execution reflects the progress of civilization. Society is said to be increasingly concerned about the wellbeing of prisoners.

In reality, the search for painless means of execution is hardly animated by empathy for anyone on death row. Rather, it reflects society's efforts to ease its own qualms about killing incapacitated people. Sanitizing the execution process is something that death penalty supporters mainly do for themselves, not for the executed person.

Killing people "softly" makes it easier on the executioners' consciences, as Austin Sarat argued in his book When the State Kills. Any death penalty supporter becomes an indirect executioner in a democratic society practicing capital punishment, which helps explain the popular demand for "humane" executions.

People commonly expect the government to execute prisoners in their name and on their behalf without ever coming face-to-face with that act. How many citizens would be willing to strap a human being to a gurney, fill a syringe with poison, inject the poison into the person's veins, and not find satisfaction until the person is dead? Confronting this practical reality could raise reservations among people who envision the death penalty in an abstract and romanticized way.

Nevertheless, history demonstrates that most people are capable of killing in cold blood under certain circumstances. The genocides of World War Two, Cambodia, Rwanda, Bosnia, and beyond were largely about ordinary people committing extraordinary atrocities. It is therefore possible that scores of citizens who support the death penalty would be willing to conduct numerous executions in person, especially since the modern execution process in America has been sanitized in order to ease our doubts about killing. That is precisely why botched executions like Lockett's stir uneasiness by confronting people with the reality that they are putting a human being to death.

Having personally worked on a broad range of murder cases -- from individual homicides in America to war crimes cases at international courts in The Hague -- I do not doubt that human beings are capable of horrible things. But empathy for victims and prisoners is not mutually exclusive. Just like opposing torture does not mean one condones terrorism, opposing the death penalty does not mean one condones murder.

America is among the countries that execute the most people along with regimes like China, Iran, Saudi Arabia, and North Korea. No other Western democracy still resorts to the death penalty, which has been abolished in law or practice by over two-thirds of all nations. The reason why certain American states are considering a return to the electric chair or firing squad is a shortage of lethal injection drugs. That shortage is mainly due to the refusal of European countries to export them to America given their opposition to the death penalty.

However, eighteen American states have now also abolished what Justice Harry Blackmun once called "the machinery of death." But growing opposition to capital punishment in America has focused on problems related to its application, from racial bias to the risk of executing the innocent. On the other hand, opposition to the death penalty in most other countries is largely rooted in the idea that it is a human rights issue because executions violate human dignity.

Perhaps the renewed search for "painless" means of execution in the wake of Lockett's agonizing death reflects a modicum of concern for human dignity. Yet, there are reasons to be skeptical when people deem a prisoner so worthless that he should be killed -- and declare at the same time that they care very much about not inflicting him pain.